Synopsis

An inmate claim that was delivered to prison officials for mailing within 90
days of the claim's accrual but was not received by the Attorney General until
more than 90 days had passed is untimely. The "mailbox rule," which is
recognized in a number of Federal courts, is not applicable in New York.
Claimant's motion to strike, which is construed to be a motion for permission to
file a late claim, is granted.

Case Information

UID:

2001-013-011

Claimant(s):

RONALD HOLLOWAY

Claimant short
name:

HOLLOWAY

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

99293

Motion number(s):

M-63235

Cross-motion
number(s):

CM-63369

Judge:

PHILIP J. PATTI

Claimant's
attorney:

RONALD HOLLOWAY, Pro Se

Defendant's
attorney:

HON. ELIOT SPITZERAttorney General of the State of New YorkBY: WENDY E. MORCIO, Esq.Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

July 30 , 2001

City:

Rochester

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

On May 16, 2001, the following papers were read on Defendant's motion for an
order of dismissal and on Claimant's cross-motion to strike:

This claim arose on August 11, 1998, when Claimant suffered personal injuries
as a result of falling in a shower at Lakeview Correctional Facility. It is
alleged that the State is responsible for the injuries because of its negligence
in failing to provide a rubber mat for the shower. The claim was filed on
November 13, 1998, and in its answer, Defendant raised the following as its
fifth affirmative defense:

Upon information and belief, this Court lacks jurisdiction because of Claimant's
failure to timely and properly serve a Claim and commence an action as required
by Sections 9, 10, and 11 of the Court of Claims Act. Claimant failed to timely
serve a Notice of Intention to File Claim or a Claim within ninety (90) days of
the alleged incident of August 11, 1998. No Notice of Intention was served, and
the Claim was served on November 13, 1998, more than ninety (90) days after the
alleged incident. Court of Claims Act , Section 11, requires that service on
the State of New York be made personally on the Attorney General or by Certified
Mail, Return Receipt Requested, to the Attorney General.

This language sets forth the affirmative defense of untimeliness and with
sufficient particularity to satisfy the requirement of Section 11(c) of the
Court of Claims Act, as it provides "adequate and clear notice to any reasonable
person that a defect is claimed to exist and that it may at some point be used
as the basis of a motion to dismiss" (Sinacore v State of New York, 176
Misc 2d 1, 6; see also,Fowles v State of New York, 152
Misc 2d 837) and refers both to the relevant statute and to the requirement that
should have been met (see,Smith v State of New York, Ct
Cl, July 20, 1993 [Claim No. 85799 - Motion No. M-48029], Benza, J.).

Because failure to comply with the time and manner of service requirements in
Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect
and deprives this Court of the power to hear the claim (Dreger v New York
State Thruway Auth., 81 NY2d 721, 721; Bogel v State of New York, 175
AD2d 493), Defendant has now moved for an order dismissing the claim. In
opposition to the motion (and in support of his motion to "strike" the motion to
dismiss), Claimant asserts that the claim was timely because it was placed in
the hands of prison officials for mailing by certified mail, return receipt
requested, on November 9, 1998, within 90 days of the date that the claim
accrued. Claimant states that he had "no other choice than to place his legal
documents in the hands of prison officials in order to be mailed" (Holloway
Affidavit, ¶9).

Section 11(a)(i) of the Court of Claims Act provides that "[s]ervice by
certified mail, return receipt requested, upon the attorney general shall not be
complete until the claim or notice of intention is received in the office
of the attorney general" (emphasis supplied). The cases cited by Claimant in
support of his argument that it is the date of mailing, not receipt, which
should be considered are Federal actions from the several Federal courts that
have adopted the "mailbox rule." Under that rule, service of jurisdictional
documents, such as complaints or notices of appeal, is complete when they are
turned over by the inmate to those prison officials responsible for placing them
in the mail (see,Houston v Lack, 487 US 266; Dory v
Ryan, 999 F2d 679). In Espinal v State of New York (159 Misc 2d
1051), former Judge (now Justice) Louis C. Benza considered the issue and
declined to adopt the "mailbox rule" for New York practice, specifically for
Court of Claims practice. I find his reasoning to be persuasive and reach the
same conclusion. Consequently, Defendant's motion to dismiss the claim will be
granted.

In Espinal (supra), Judge Benza noted that one of the
several protections available to litigants in this Court, protections that made
adoption of the "mailbox rule" unnecessary, was the availability of a Court of
Claims Act §10(6) motion for permission to file an untimely claim (159 Misc
2d at 1055). In that action, claimant's counsel had included a discussion of
the factors relevant to such a motion, and Judge Benza elected to construe the
responsive submission containing this information as such a motion. In the
instant case, Claimant has filed a cross-motion and, in his submissions in
support of that cross-motion, has addressed a number of the factors relevant to
a motion for permission to late file. Although the motion is inartfully worded,
I will follow the example of Espinal (159 Misc 2d 1051) and construe it
to be a motion for relief under Section 10(6). I note as one of my principal
reasons for doing this that Claimant would not have time to receive this
Decision and Order and then make a more formal motion before the CPLR Article 2
statute of limitations expires on August 11, 2001.

Claimant's cross-motion was filed within three years after the proposed claim
arose, and as in a like action against a citizen would not be barred by the
applicable statute of limitations (CPLR 214). As demonstrated above, Claimant
believed that he had initiated this action in a timely fashion because he
considered the date on which he mailed the claim to be the date of service and
filing. Ignorance of the law does not provide an acceptable excuse for failure
to comply with the statutory filing requirements (see, e.g.,
Erca v State of New York, 51 AD2d 611, affd 42 NY2d
854; Block v New York State Thruway Auth., 69 AD2d 930), but Claimant's
actions, together with his full compliance with the requirements relating to
manner of service, demonstrate that he made a good-faith effort to take the
necessary steps.

Claimant asserts that the unusual condition of the shower in question, which
resulted in the accumulation of water, was known to the State and that extra
bath towels were issued because of that condition (Holloway Affidavit,
¶11). It appears, therefore, that Defendant had at least some notice of
the essential facts constituting the claim. In addition, while the claim was
not filed or served within the specific time limitations set forth in Court of
Claims Act §10(3), it arrived only days after that time period, and thus
the State was fully aware of both Claimant's intention to sue and the facts
underlying his suit before significant prejudice could attach. Defendant can
hardly complain of staleness when it receives so closely the notification to
which it is entitled by statute (see,Nyberg v State of New
York, 154 Misc 2d 199; Matter of Crawford v City University of New
York, 131 Misc 2d 1013).

Claimant does not have an available remedy against any party other than the
State, and he has succeeded, at least at a minimal level, in establishing that
his cause of action is not patently groundless, frivolous, or legally defective
and that there is reasonable cause to believe that a valid cause of action
exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
I conclude, therefore, that Claimant is entitled to late file a claim identical
in content to Claim No. 99293 and direct that he do so in conformance with the
requirements of Court of Claims Act §10 and §11 within sixty (60) days
after this order is filed.

Defendant's motion to dismiss the claim is granted, Claim No. 99293 is
dismissed, and Claimant's cross-motion, which is construed as a motion for
permission to late file pursuant to Court of Claims Act §10(6), is
granted.